Protest Decisions

IN RE: DARWIN MOORE, Protestor.
Protest Decision 2011 ESD 171
Issued: March 21, 2011
OES Case No. P-202-030711-MW

Darwin Moore, member of Local Union 243 and candidate for delegate, filed this pre-election protest by counsel pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Local Union 243 impermissibly denied Moore the right to participate fully in a local union craft meeting, in violation of the Rules.

This protest was investigated by Election Supervisor representative Joe Childers.

Findings of Fact and Analysis

Local Union 243 is entitled to elect four delegates and four alternate delegates to the IBT convention. At the nominations meeting held January 8, 2011, five candidates for delegate and four candidates for alternate delegate were nominated. Four of the delegate candidates are members of the Cinci/Lowran slate, which includes local union officials. Moore was nominated as an unaffiliated candidate for delegate. The four candidates for alternate delegate were unopposed and therefore deemed elected.

Prior to the nominations meeting, Moore sought an eligibility determination from OES. We determined him eligible for nomination. After he was nominated, Moore's eligibility was protested by Jim Cianciolo, local union principal officer and lead candidate on the Cinci/Lowran slate. We denied the protest in Eligibility of Moore, 2011 ESD 129 (February 21, 2011), aff'd, 11 EAM 23 (March 2, 2011). Cianciolo's principal argument for finding Moore ineligible was that the local union placed him on withdrawal status as required by the IBT constitution when he remained unemployed for more than six consecutive months following his discharge by UPS. We rejected this argument, finding that Moore's unemployment was excused under Article VI, Section 2(b) of the Rules by his lawsuit challenging that discharge, and that he was therefore eligible. We held: "The Rules' special provision addressing active pursuit of legal action to challenge suspension or discharge from employment supersedes the withdrawal card and preserves Moore's eligibility." We stated further: "Given our holding that Moore's eligibility is preserved under the Rules because of the pendency of his lawsuit, we find that the withdrawal status has no impact on his eligibility."

On March 5, 2011, after the Election Appeal Master's decision affirming Moore's eligibility, Moore attended a craft meeting for UPS members held at the local union hall. Greg Lowran conducted the meeting. Lowran is local union secretary-treasurer and an elected alternate delegate. Some 42 members attended the meeting; the turnout was less than what is typical, apparently because of inclement weather. Before the meeting started, Moore and representatives of Cinci/Lowran leafleted arriving members in the parking lot. Moore also was permitted to place his campaign literature on a table inside the meeting room. Just before the meeting started, Moore asked to attend. Lowran told Moore that his dues were not paid up but, since he had been ruled eligible to run as a delegate candidate, he could attend the meeting. Moore's dues were not paid up because the local union repeatedly refused to accept his dues after placing him on withdrawal status. Lowran also told Moore he could not speak during the meeting or ask questions and instead would be treated as a guest. Moore asked if he should sign the sign-in register; Lowran told him no.

Lowran told our investigator that members on withdrawal and retirees often attended meetings of their craft but were not permitted to speak or ask questions during the meeting. He stated that Moore was a former steward and knew this practice. The meeting lasted approximately two hours and Moore left before the end of the meeting. There is no dispute that the meeting was solely work-related, and there was no discussion of election business or the campaign during the meeting.

By denying him the right to participate in the craft meeting, Moore contends that the local union treated him as a "second class citizen." Moore relies on a DOL regulation, cited in his response to the appeal of the decision holding him eligible, that a union's membership requirements "should not be so inflexible as to disqualify those members who are familiar with the trade but who because of illness, economic conditions, or other good reasons are temporarily not working."[1] The regulation states further that "a member would not be considered to have forfeited his membership in the union … merely because he is discharged or laid off."[2]

Moore alleged that he attended the meeting in part because he wished to question Lowran about issues important to the membership. He characterized Lowran, the meeting's chair, as his "opponent in the delegate election." In fact, Lowran is an elected alternate delegate and is not competing in the election, although he was nominated as part of the Cinci/Lowran slate.

Moore claims that the decision confirming his eligibility for nomination established that he has been restored to all of the rights of a member in good standing of Local Union 243. The local union contends, to the contrary, that except for the rights Moore has as a nominated candidate under the Rules, he remains on withdrawal status and has only those rights accorded members in that status.

This question is one of first impression under the Rules. "Member" is defined under the Rules as "any person who has fulfilled the requirements of membership in any Local Union and who has neither voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the IBT Constitution and the by-laws of the Local Union." Definition 32. "Member in good standing" is "a member who has paid his/her dues through the month prior to the month in question." Definition 33.

In our decision upholding Moore's eligibility to run as a delegate candidate, we found that Moore's efforts to remit his dues timely were rebuffed by the local union, relying on the withdrawal status. We stated that"had Moore timely remitted dues payments for February 2010 and all subsequent months, the local union would have responded in the same manner it did with respect to the January 2010 tender, rejecting the payment so long as the local union considered Moore to be on honorable withdrawal."

Local Union 243 maintains that only an appeal through internal IBT procedures can restore Moore to the status of a member in good standing. This argument was previously considered and rejected by us and by the Election Appeals Master. Nevertheless, the local union continues to maintain that Moore, while eligible to run as a candidate for delegate, is not a member in good standing in the local union and should not be treated as if he is. In her appeal letter to the Election Appeals Master, counsel for Moore argued that LMRDA exhaustion requirement does not require a member to go through ritualistic obstacle courses or successfully traverse a minefield created by the Union, before reaching the merits of his internal union dispute, citing Kinslow v.Briscoe, 130 F. Supp.2d 965, 972 (N.D. Ill.1999); Berg v. Strickland, 229 F. Supp.2d 875, 880 (N.D. Ill. 2002). The Election Appeals Master found this argument to be convincing, and so do we.

We hold that any candidate whom the Election Supervisor has found eligible for nomination must be accorded the rights of a member in good standing, regardless of whether the local union has placed the eligible candidate on withdrawal status. These rights include the right of a candidate under Article VII, Section 5(a)(1) to attend "any meeting of the Local Union to which he/she belongs as a member" and protects the candidate from discrimination at meetings under Article VII, Section 5(a)(4).

Moore is entitled to these rights for so long as he remains a candidate under the Rules, and, if elected as delegate, for so long as he exercises the rights and responsibilities of that position.[3] Accordingly, we find that Local Union 243 violated the Rules by prohibiting Moore from exercising the right members in good standing have to speak and ask questions at the craft meeting held March 5, 2011.

Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We direct Local Union 243 to cease and desist from taking any further action to deny Moore the rights of a member in good standing for so long as he remains a candidate under the Rules and, if elected as delegate, for so long as he exercises the rights and responsibilities of that office.

In addition, we direct Local Union 243, within two days of issuance of this decision, to post on the homepage of http://www.teamsters243.org the notice attached to this decision. Such posting shall appear at the top of the middle column of the homepage and remain in that position until April 1, 2011. Within two days following such action, we direct Local Union 243 to submit a compliance affidavit to our offices.

We also direct Local Union 243, within two days of issuance of this decision, to post the same notice on all worksite bulletin boards of the local union and to mail the notice, by first class mail, to each of the 42 members who attended the UPS craft meeting that is the subject of this protest.

A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.

Richard W. Mark
Election Supervisor

cc:    Kenneth Conboy
        2011 ESD 171

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Darwin Moore
9165 Evee Road
Clarkston, MI 48348
mooredarwin@comcast.net

Jim Cianciolo, President
Teamsters Local Union 243
39420 Schoolcraft
Plymouth Twp., MI 48170
Fax: (734) 420-2610

Joe F. Childers
Getty & Childers, PLLC
250 West Main Street, Suite 1900
Lexington, KY 40507
childerslaw@yahoo.com

William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.com

Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com

Richard W. Mark
Election Supervisor

The Election Supervisor has found that Local Union 243 violated the Election Rules by prohibiting delegate candidate Darwin Moore from participating in a craft meeting of UPS employees after he was found eligible to be a candidate for delegate.

The Election Supervisor has ordered Local Union 243 to cease and desist from denying Darwin Moore the full rights of a member in good standing of Local Union 243 for so long as he remains a candidate for delegate and, if elected, for so long as he exercises the rights and responsibilities of a delegate.

The Election Supervisor has further directed Local Union 243 to post this notice on the homepage of its website, http://www.teamsters243.org, until April 1, 2011, to post it on all worksite bulletin boards, and to mail it to the members who attended the UPS craft meeting.

The Election Supervisor has issued this decision in Moore, 2011 ESD 171 (March 21, 2011). You may read it at http://www.ibtvote.org/protests/2010/2011esd171.htm.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.

This is an official notice of the IBT Election Supervisor and must remain posted until April 1, 2011 and must not be defaced or covered up.